Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the January 21, 2026, edition of the National Law Journal. © 2025 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
The Supreme Court’s decision last week to grant certiorari in Monsanto Co. v. Durnell isn’t just wrong. It’s something worse: intellectually dishonest.
This isn’t a case that cleanly presents an unsettled question of federal law, nor is it a case involving a mature, entrenched circuit split. And it certainly isn’t a case in which the court’s intervention is needed to restore coherence to a fractured doctrine. Instead, it’s a case in which the court has gone out of its way to rescue a recidivist corporate defendant from the consequences of jury verdicts that it has spent years trying—and failing—to undo. The cert grant reflects a pattern that has become increasingly familiar: federal preemption elevated from a doctrine of statutory restraint into a blunt instrument for extinguishing state-law accountability, even where Congress expressly rejected that result, even where the factual record is deeply unfavorable to the defendant, and even where the court itself has repeatedly declined to intervene before.
Here’s what happened. Monsanto has faced a series of lawsuits relating to consumers’ use of Roundup, a weed killer with the nasty habit of causing cancer. Or, at least, that’s what multiple juries have found, including recently in Missouri, where a jury ruled that Monsanto was liable for failing to warn that it causes non-Hodgkin’s lymphoma (and that it did, as a matter of fact, cause the plaintiff’s cancer).
But this case isn’t about whether those juries’ decisions were wrong or lacked basis. It’s about preemption—the federal doctrine that prevents states from engaging in lawmaking that fundamentally conflicts with federal laws. Preemption is sometimes express—as in where the federal government has a statute (as it does in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)), prohibiting states from promulgating regulations “in addition to or different from those required” under FIFRA, or it can be “implied,” as when it would somehow be impossible for states to simultaneously follow both state and federal law.
Preemption can be simple to describe but hard to litigate, and, for that reason, the Supreme Court is usually loath to take on a preemption case unless there is actual confusion or conflict in the lower courts. Here, the court’s nominal justification for taking this case is a purportedly “acknowledged” circuit split over whether FIFRA preempts state-law failure-to-warn claims involving Monsanto’s Roundup herbicide. But that split doesn’t meaningfully exist. For nearly two decades, courts have applied the Supreme Court’s explanation in Bates v. Dow AgroSciences that FIFRA preempts only those labeling requirements “in addition to or different from” federal requirements. Federal law requires companies to issue warnings if they know that their products cause cancer. State tort law can require the same things. FIFRA doesn’t preempt state-law claims that parallel federal misbranding standards, nor does it transform EPA registration into tort immunity. The Ninth and Eleventh Circuits have followed that rule, as well as numerous state appellate courts. And so did the Supreme Court itself when it denied certiorari—twice—in Monsanto v. Pilliod and Monsanto v. Johnson. In short, those cases have upheld the longstanding doctrine that a company is responsigble for its label: one-time approval of a label by the EPA does not create immunity until such time as EPA mandates a new label.
Those denials were neither silent nor accidental. In Hardeman, the solicitor general expressly urged the court to stay out of the dispute, explaining that no true conflict had emerged and that Monsanto’s preemption arguments were wrong on the merits. At that time, the government correctly recognized that FIFRA’s preemption clause is narrow, that registration is not a defense, and that Congress deliberately preserved a role for state law remedies. The law was stable, the doctrine was settled, and the court declined review.
What has changed since then is not the statute, not the regulatory framework, and not the science. What has changed is that Monsanto has continued to lose—before juries, in state courts, and in federal courts applying settled law. What has also changed is that a single court of appeals—the U.S. Court of Appeals for the Third Circuit—in Schaffner v. Monsanto—issued a decision resting on a materially different record, narrower claims, and express reservations about questions that were squarely presented and resolved in Durnell. Indeed, even Schaffner acknowledged that it wasn’t deciding how FIFRA applies when a manufacturer continues selling a product after learning new information that renders its labeling inadequate—precisely the theory litigated, proved, and upheld in Missouri.
Yet, the court has seized on Schaffner as though it were a doctrinal earthquake, rather than what it is: a limited outlier, already in tension with Supreme Court precedent, FIFRA’s text, and the statutory structure that Congress enacted. This is not how certiorari is ordinarily exercised. The court doesn’t usually intervene to resolve shallow, underdeveloped disagreements—particularly where factual distinctions do the real work. Unless, of course, the objective isn’t clarification, but correction.
What makes this cert grant especially troubling is that the court isn’t acting as a neutral arbiter asked to resolve genuine confusion in the lower courts. Rather, it’s acting as an active participant in a long-running corporate litigation campaign—one that has failed before juries, failed in state courts, failed in multiple appellate circuits, and now seeks relief from the only forum left. When the court repeatedly declines review while a defendant loses trial after trial, then suddenly intervenes once verdicts mount and damages grow, it sends a clear signal: Lose often enough, and the rules will be rewritten. That’s not neutral adjudication, it’s strategic intervention.
The posture of the case is made worse by the federal government’s role. In 2022, in Hardeman, the United States told the Supreme Court—unambiguously—that Monsanto’s preemption arguments were incorrect. The solicitor general explained that FIFRA’s preemption clause is narrow, that EPA registration isn’t a defense, and that state law failure-to-warn claims consistent with federal misbranding standards aren’t preempted. Three years later, without any intervening statutory amendment, regulatory overhaul, or material change in the science, the government now urges the opposite result. Same statute. Same product. Same warnings. Same defendant. New administration.
Shamefully (or shamelessly), the government’s current brief doesn’t even attempt to reconcile this reversal with its prior position. It simply attributes the shift to a “change in administration,” as though federal preemption doctrine were a policy preference, rather than a legal rule. That should alarm anyone who cares about the rule of law. Preemption turns on congressional intent and statutory text, not electoral cycles. When federal supremacy becomes a game of political ping-pong, the court should respond with skepticism—and not reward the latest volley with a certiorari grant as it just did here.
Lost in the abstraction of preemption doctrine is what the Missouri jury actually found. Monsanto didn’t merely fail to include a cancer warning on a label frozen in amber by EPA fiat. To the contrary, the evidence showed that Monsanto knew for decades that glyphosate and formulated Roundup posed serious carcinogenic and genotoxic risks; suppressed adverse studies and declined to conduct additional testing recommended by its own scientists; ghost-wrote supposedly independent scientific articles later relied upon by regulators; marketed Roundup to consumers as being safe to use without protective equipment, while providing stronger warnings to professional applicators; and repeatedly amended Roundup labels for business reasons, yet never sought approval to add warnings that would reduce exposure and risk.
Under FIFRA, registration is not a defense. Congress said so explicitly. Registration is, at most, prima facie evidence of compliance—and manufacturers retain an ongoing duty to ensure that their products aren’t misbranded in light of new information. The Missouri court, applying that framework, allowed the jury to conclude that Monsanto could have—and should have—sought label changes or provided warnings through advertising and marketing. Nothing in FIFRA forbade that conduct. Indeed, the EPA itself has acknowledged that a truthful, contextual cancer warning could be approved if requested. This isn’t impossibility preemption; it’s accountability.
The intellectual dishonesty of Monsanto’s position—and of the cert grant indulging it—lies in a category error. Treating FIFRA registration as de facto immunity isn’t an aggressive reading of Bates; it’s actually a misreading that collapses the “parallel requirements” doctrine into nullity. If federal misbranding standards are treated as a ceiling rather than as a floor, then state remedies disappear precisely when they matter most—after a manufacturer learns that its product is dangerous and chooses silence over warning. That’s not preemption as Congress enacted it. It’s tort reform by judicial reinterpretation.
The amici supporting Monsanto are candid about what they want. The business-group amici openly seek a rule under which EPA approval of a label functions as nationwide tort immunity. That position, however, finds no support in FIFRA’s text. Indeed, if that’s what Congress intended, it could have written and enacted such a statute. But it didn’t do that. Instead, it preserved state authority, rejected registration as a defense, and preempted only divergent labeling requirements—and not state remedies for misbranding.
The agricultural amici are even more striking and run so contrary to those amici’s interests that it can only be viewed as a legal form of Stockholm Syndrome. Organizations purporting to speak for American farmers—one of the most consistent and reliable Republican voting blocs—urge the court to immunize Monsanto on the theory that liability threatens access to glyphosate. But that argument is completely backwards. If the court gives Monsanto what it wants, farmers won’t be protected; they’ll be harmed. They’ll be denied information about risks, stripped of legal recourse when harmed, and locked into dependence on products whose manufacturers face no incentive to warn, test, or reformulate.
Make no mistake: The doctrine that Monsanto asks the court to adopt isn’t limited to Roundup. Should the court side with Monsanto, depending on the scope of the court’s ultimate opinion, it could function as a template for insulating federally regulated products from aggregate liability altogether—one industry at a time. If EPA approval becomes immunity, agricultural failure to warn actions will vanish not because the claims lack merit, but because Congress delegated regulatory authority. That’s not statutory interpretation; rather it’s back-door tort reform by judicial decree.
The consequences will be immediate and sweeping. Thousands of claims will disappear. Injured plaintiffs will be told that even where a company knowingly markets a dangerous product without adequate warnings, state law is powerless to respond. Juries will be sidelined and deterrence will erode. Preemption, once a doctrine of constitutional structure, will become a corporate escape hatch.
The court didn’t need to take this case. The law was stable, the alleged circuit split was immature, the government’s position was opportunistic, and the equities overwhelmingly favored restraint. If the court ultimately rules as Monsanto demands, it will do so with eyes wide open—knowing that it’s weakening farmers’ and farm workers’ rights, reducing consumer protection, undermining state sovereignty, and foreclosing access to justice for some of the most grievously injured plaintiffs in the civil justice system.
That’s not judicial modesty. It’s judicial activism in service of corporate power.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at alevitt@dicellolevitt.com.
Thank you to DiCello Levitt partner Dan Schwartz for contributing to this column.
